FOURTH AMENDMENT AGREEMENT
between
XXXXXXX INVESTMENT TRUST
and
INVESTORS BANK & TRUST COMPANY
AMENDMENT AGREEMENT
AGREEMENT, effective September 1, 2002, by and between XXXXXXX INVESTMENT
TRUST, a Delaware business trust (the "Fund") and INVESTORS BANK & TRUST
COMPANY, a Massachusetts trust company (the "Bank").
WHEREAS, the Fund and the Bank entered into a Custodian Agreement dated as
of February 7, 1995, (together with subsequent Amendments, the "Custodian
Agreement"); and
WHEREAS, the Fund and the Bank entered into a Transfer Agency and Service
Agreement effective February 7, 1997 (together with subsequent Amendments, the
"Transfer Agency Agreement"); and
WHEREAS, the Fund and the Bank entered into a Master Repurchase Agreement
effective December 31, 1996 (together with subsequent Amendments, the
"Repurchase Agreement"); and
WHEREAS, the Fund and the Bank entered into a Securities Lending Agency
Agreement effective March 20, 2000 (together with subsequent Amendments, the
"Securities Lending Agreement"); and
WHEREAS, the Fund and the Bank desire to amend the Custodian Agreement,
Transfer Agency Agreement, Repurchase Agreement, and Securities Lending
Agreement as set forth below.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements herein set forth, the parties hereto agree as follows:
1. Amendment of the Custody, Transfer Agency, Repurchase and Securities
Lending Agreements.
(a) The document attached as Appendix A to this Amendment Agreement
supersedes any and all existing Portfolio Listings previously agreed
to between the Bank and the Fund and shall constitute Appendix A to
the Custody and Transfer Agency Agreements, Schedule VII. A to the
Repurchase Agreement, and Schedule A to the Securities Lending
Agreement effective the date first noted above.
2. Amendment of the Custodian Agreement.
(a) Section 1 of the Custodian Agreement is hereby amended by deleting
such Section 1 in its entirety and inserting in lieu thereof the
following:
"1. Bank Appointed as Custodian. The Fund hereby appoints the Bank as
custodian of the Fund's portfolio securities and cash delivered to the
Bank as hereinafter described and the Bank agrees to act as such upon
the terms and conditions hereinafter set forth. For the services
rendered pursuant to this Agreement the Fund agrees to pay to the Bank
fees as may be agreed to from time to time in writing between the
parties."
(b) Section 13.5 of the Custodian Agreement is hereby amended by deleting
such Section 13.5 in its entirety and by inserting in lieu thereof,
the following:
"13.5 Fees and Expenses of the Bank. For the services rendered by the
Bank hereunder, the Fund will pay to the Bank such fees at such rate
as shall be agreed upon in writing by the parties from time to time.
The Fund will also pay or reimburse the Bank from time to time for any
transfer taxes payable upon any transfers made hereunder, and for all
necessary proper disbursements, expenses and charges made or incurred
by the Bank in the performance of this Agreement (including any duties
listed on any Schedule hereto, if any) including any indemnities for
any loss, liabilities or expense to the Bank as provided herein. The
Bank will also be entitled to reimbursement by the Fund for all
reasonable expenses incurred in conjunction with termination of this
Agreement and any conversion or transfer work done in connection
therewith.
(c) Xxxxxxx 00, Xxxxxxxxxxx, Xxxxxxxxx 14.1 is hereby amended by deleting
such Paragraph 14.1 and by inserting in lieu thereof, the following:
"14.1 The term of this Agreement shall be two years commencing upon
September 1, 2002 (the "Initial Term"), unless earlier terminated as
provided herein. After the expiration of the Initial Term, the term of
this Agreement shall automatically renew for successive one-year terms
(each a "Renewal Term") unless notice of non-renewal is delivered by
the non-renewing party to the other party no later than ninety days
prior to the expiration of the Initial Term or any Renewal Term, as
the case may be.
(a) Either party hereto may terminate this Agreement prior to the
expiration of the Initial Term or any Renewal Term in the event
the other party violates any material provision of this
Agreement, provided that the non-violating party gives written
notice of such violation to the violating party and the violating
party does not cure such violation within 90 days of receipt of
such notice.
(b) If a majority of the Board of Trustees reasonably determines that
the performance of the Bank under this Agreement does not meet
industry standards, written notice (the "Notice") of such
determination setting forth the reasons for such determination
shall be provided to the Bank. In the event the Bank shall not,
within ninety (90) days thereafter, cure identified deficiencies
to the reasonable satisfaction of the Board of Trustees, the
Fund, with the authorization of the Board, may terminate this
Agreement immediately.
(c) Any termination pursuant to this paragraph 14.1 shall be
effective upon expiration of such ninety days, provided, however,
that the effective date of such termination may be postponed to a
date not more than one hundred twenty days after delivery of the
written notice: (i) at the request of the Bank, in order to
prepare for the transfer by the Bank of all of the assets of the
Fund held hereunder; or (ii) at the request of the Fund, in order
to give the Fund an opportunity to make suitable arrangements for
a successor custodian."
(d) Appendix B to the Custody Agreement is deleted in its entirety
and reserved.
2. Amendment of the Transfer Agency Agreement.
(a) In Article 11. Fees and Expenses, Paragraph 11.01, second line,
replace "an annual fee as described in Appendix B." with "such fees at
such rate as shall be agreed upon in writing by the parties from time
to time."
(b) Appendix B to the Transfer Agency Agreement is deleted in its entirety
and reserved.
(c) In ARTICLE 16. Term of Agreement, Paragraph 16.01 Termination of
Agreement, in the first line, replace "two years commencing upon
November 1, 1999" with "two years commencing upon September 1, 2002"
(d) Add a new Article 24. Confidentiality to read in its entirety as
follows:
"ARTICLE 24. Confidentiality
24.01 Both parties hereto agree than any non-public information
obtained hereunder concerning the other party is confidential and may
not be disclosed without the consent of the other party, except as may
be required by applicable law or at the request of a governmental
agency or self-regulatory organization. The parties further agree that
a breach of this provision would irreparably damage the other party
and accordingly agree that each of them is entitled, in addition to
all other remedies at law or in equity to an injunction or injunctions
without bond or other security to prevent breaches of this provision.
In addition, the parties further agree that any Nonpublic Personal
Information, as defined under Section 248.3(t) of Regulation S-P
("Regulation S-P"), promulgated under the Xxxxx-Xxxxx-Xxxxxx Act (the
"Act"), disclosed by a party hereunder is for the specific purpose of
permitting the other party to perform the services set forth in this
Agreement. Each party agrees that, with respect to such information,
it will comply with Regulation S-P and the Act and that it will not
disclose any Nonpublic Personal Information received in connection
with this Agreement, to any other party, except as necessary to carry
out the services set forth in this Agreement or as otherwise permitted
by Regulation S-P or the Act or other applicable law."
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IN WITNESS WHEREOF, each party hereto has caused this Agreement to be executed
by its duly authorized officer, as the case may be, as of the date and year
first above written.
XXXXXXX INVESTMENT TRUST
By: ________________________________
Name: _____________________________
Title: ______________________________
INVESTORS BANK & TRUST COMPANY
By: ________________________________
Name: _____________________________
Title: ______________________________
Appendix A
Portfolios
x Xxxxxxx Institutional International Equity Fund
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